“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Monday, December 16, 2013

Commentary to Model Rule Limiting Attorney Criticism of Judges Shows Rule Being Misinterpreted and Misapplied by State Disciplinary Bodies

Rule 8.2 is the disciplinary rule of choice for sanctioning attorneys who criticize judges. It is the rule being used to prosecute me for criticizing Hendricks County Superior Court Judge David Coleman in private emails I sent to an attorney and case participants. In the emails, I said Judge Coleman had failed to follow probate rules and that he should be investigated for how he handled the case. What has not gotten much publicity is that prior to Judge Coleman complaining to the Disciplinary Commission regarding me, I had Coleman removed from the case by the Indiana Supreme Court due to a "lazy judge" notice I filed.

I would like to think I'm alone in being a victim of the overzealous application of Rule 8.2. However, since my situation became public I have heard from attorneys all over the country how they too are being disciplined for criticizing judges. An attorney in Utah was actually jailed for three days and publicly reprimanded for criticizing a judge in a motion to withdraw. A Tennessee attorney wrote an email to a judge complaining about comments the judge had made to the media after a case they had been involved in was over. He now faces Rule 8.2 charges. A South Carolina attorney is charged with violating Rule 8.2 for comments he made about a judge on Twitter. The list is endless.
Let's take a look at Rule 8.2:

(a) A lawyer shall not make a statement that the lawyer
knows to be false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judge, adjudicatory officer or
public legal officer, or of a candidate for election or appointment to judicial
or legal office.

Almost every state supreme court and disciplinary body has rejected Rule 8.2 as employing the New York Times v. Sullivan actual malice libel standard for public officials, an exception to the Free Speech Clause which requires that the speaker has knowledge of the falsity of his statements about a public official. Instead state supreme courts have applied Rule 8.2 in such a way as to shift the burden of proving criticism of judges is true to the attorney speaker, even requiring the attorney to often prove that critical opinions are true. The supposed justification for such an approach limiting,even chilling attorney free speech, is the need to uphold the "public integrity" of the judicial branch. To students of history, the justification should sound eerily familiar. It is the exact same argument the Federalists use for justifying the 1798 Alien and Sedition Acts which criminalized false criticism of the executive and legislative officials.

What is interesting is that in none of the published Rule 8.2 cases I have read has a court actually reviewed the commentary and notes to the Model Rule 8.2 was adopted by American Bar Association Commission on Evaluation of Professional Standards to see what was intended. Well, to the credit of my attorney Adam Lenkowsky, he had the foresight to do exactly that. He went looking for the background on Model Rule 8.2 and found information that completely refutes the approach most states, including Indiana, have been taking as to the application of Rule 8.2. The rule was intended to apply the NY Times v. Sullivan actual malice standard, was intended to cease attorney prosecutions for "intemperate speech" and for the expression of opinions for the expression of opinions. Here is the commentary and notes to Rule 8.2 with certain provisions highlighted which contradict how the rule is being applied:

COMMENT:
Assessments by lawyers are relied on in evaluating the professional or personal fitness of
persons being considered for election or appointment to judicial office and to public
legal offices, such as attorney general, prosecuting attorney and public defender. Expressing honest and candid opinions on such
matters contributes to improving the administration of justice. conversely,
false statements by a lawyer can unfairly undermine public confidence in the
administration of justice.
When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations
on political activity.

NOTES:

Code Comparison

With regard to Rule
8.2(a), DR 8-102(A) provides that "A lawyer shall not knowingly make false
statements of fact concerning the qualifications of a candidate for election or
appointment to a judicial office,"
DR. 8-103(B) provides that "A lawyer shall not knowingly make false
statements against a judge or other adjudicatory officer."

Rule 8.2(b) is
substantially identical to DR 8-102.

Legal Background

A
lawyer's right "as a citizen to [criticize] and attack a candidate for an elective
office must be recognized, so long as the right is not abused. That the office
is judicial, and that the candidate is there serving as a judge, can make no
difference in the basic principle involved….We cannot think that a lawyer's
citizen's criticism of such a candidate must [sic] needs to be confined to what
is decent and respectful. His criticism
may be as indecent and disrespectful as the facts justify. The rule governing … such utterances must be
that of a qualified privilege…."
Thatcher v. United States, 212 F. 801, 07 (6th Cir. 1914), appeal dismissed,
241 U.S. 644 (1916.)

Traditional rules governing
criticism of courts have been sweeping in scope. Some courts have justified a broad prohibition
on criticism of judicial officers on the need to maintain public confidence in
the judicial system. See, e.g.,
Justices of Appellate Div. v. Erdman, 40 A.D.2d 521, 333 N.Y.S.2d 862 (1972);
In re Raggio, 487 P.2d 499 (1971); Nelles & King, "Contempt by
Publication in the United States,"
28 Colum. L. Rev. 401, 525 (1928).
In a number of cases, however, the Supreme Court has rejected attempts
to penalize extrajudicial criticism of judicial officers on such grounds. See, e.g., Craig v. Harney, 331 U.S.
367 (1947); Pennekamp v. Florida, 328 U.S. 311 (1946). Truthful criticism is protected by the First
Amendment, subject to regulation only to the extent it presents a clear and imminent
threat to the fair administration of justice or involves conduct disruptive of
a judicial proceeding. See Rules
3.5 & 3.6.

The
Supreme Court has held that false statements about public officials may be
punished only if the speaker acts with knowledge that the statement is
"false or with reckless disregard of whether it is false or
not." New York Times Co. v.
Sullivan, 376 U.S. 254, 279-80 (1964); see Garrison v. Louisiana, 379 U.S. 64
(1964). Rule 8.2 is consistent with that
limitation.See Note, "In re
Erdmann: What Lawyers Can Say About
Judges," 38 Alb. L. Rev. 600, 609-610 (1974) ("Since disciplinary
actions against attorneys seem to constitute a serious deterrent to free
political discussion, it is arguable that such actions should be subject to the
same constitutional limitations as the Supreme Court has imposed in defamation
actions.") Compare Spencer
v. Dixon, 290 F. Supp. 531 (W.D. La. 1968); State v. Nelson, 504 P.2d 211 (Kan.
1972); Justices of the Appellate Div. v. Erdmann, 33 N.Y. 559, 560, 301 N.E.2d
426, 427, 347 N.Y.S. 2d 441, 442 (1973)(Burke, J, dissenting).

It is clear that the adoption of Rule 8.2 was intended to incorporate the NY Times v. Sullivan standard of actual malice for criticizing public officials and that, under the Rule 8.2 states were supposed to show the attorney had actual knowledge that the statement was false. (For states to go beyond that and impose additional restrictions attorney speech criticizing judges, i.e. public officials beyond the exception allowed by the Supreme Court in NY Times v. Sullivan would violate the First Amendment.) Further, Rule 8.2 was never intended to apply to statements of opinions which can't be proven true or false. That the rule was intended to apply only to statements of fact which can readily be proven true or false is consistently ignored by many state disciplinary bodies as they prosecute attorneys for judicial criticism.

Again, credit goes to my attorney Adam Lenkowsky for having the presence of mind to actually go look up the notes and commentary accompanying the adoption of Model Rule 8.2. Now if state disciplinary bodies will only start reading the background on Rule 8.2 and apply it as intended and in accordance with what the Constitution requires...

1 comment:

Don't forget to share this information with the other attorneys that have been victimized! The more light shined on this bad practice the harder it will be for judges and ruling committees to bull doze down good hard working honest attorneys.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.